A Durham City Council member and a UNC Chapel Hill law professor question whether those arrested in the toppling of the Durham County Confederate memorial should face felony charges.
Councilman Charlie Reece said he asked Sheriff Mike Andrews not to press felony charges against the accused. UNC-CH School of Law Professor Joseph Kennedy said he too questions the basis of the felony charges.
After Andrews’ news conference Tuesday, but before anyone had been arrested, Reece said he approached the sheriff to thank him for how deputies handled the Monday night protest. Reece also asked Andrews to reconsider his approach to charging people with felonies.
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At the press conference, Andrews said he would pursue felony charges and added, “Let me be clear, no one is getting away with what happened.”
Reece, a former state prosecutor, acknowledges he has no jurisdiction relating to the monument, which stood on Durham County property.
“It’s still my moral obligation to appeal to you as a member of the community not to do this to these people,” Reece said he told Andrews.
The four activists arrested as of Wednesday afternoon have been charged with two misdemeanors – disorderly conduct by injury of a statue, damage to real property – and two felonies – participation in a riot with property damage in excess of $1,500 and inciting others to riot where there is property demand in excess of $1,500.
Reece questioned whether the statue, which he called a “hunk of junk metal,” was worth $1,500.
Reece said Andrews told him that would be up to District Attorney Roger Echols.
Reece then contacted Echols, who told Reece “he was not expecting the sheriff to charge these folks with felonies,” Reece said.
Echols then told Reece he will review the evidence applicable to each person and decide how to proceed, Reece said.
Tamara Gibbs, spokeswoman for the Sheriff’s Office, said the office notified Echols’ office before making the arrests.
“We can confirm that our legal adviser made the District Attorney’s Office aware of pending felony charges before the warrants were obtained,” she said.
Law prof weighs in
Kennedy, the UNC law professor, said the N.C. general statute from which the activists’ felony charges stem, defines a riot as requiring both disorderly conduct and violence, and Kennedy questions what acts of violence, if any, the protesters committed.
Under state law, a riot is defined as “a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.”
Kennedy is a professor of criminal law.
“Disorderly conduct is specifically defined in another statute as including the damaging or defacing of public monuments,” Kennedy said. “Violence is not defined in the statute. Violence would seem however, to refer to some sort of force against people.”
The harming – defacing or damaging – of a public monument is only disorderly conduct, Kennedy said.
“When the North Carolina legislature chose to define riot, they specifically chose to include ‘disorderly conduct’ and ‘violence,’” Kennedy said. “It makes sense that you would distinguish a felony riot from misdemeanor riot, in part, because you are willing to use force against other people.”
Even outside a courtroom, Kennedy said, a group of people gathered together solely to damage “something,” is a group of people commonly perceived as vandals – not rioters.
“That’s vandalism. That’s destruction of property, and that’s disorderly,” Kennedy said. “But it’s not a felony riot.”
To simplify his thought process, Kennedy described the following scenario: “There is a crowd of people and they are saying ‘Yes, we are going to tear this monument down,’ and if there are no people in opposition saying that they shouldn’t tear it down, it would be hard to prove a riot,” Kennedy said, adding: “Because, it would be hard to prove an intent to use force against anyone else.”
Kennedy believes prosecutors will have to prove a use or intent of violence – that goes above and beyond citizens’ First Amendment right to use strong language expressing political objectives – for the accused activists to be convicted of felony charges.